What is a reasonable excuse?
The term ‘reasonable excuse’ appears in many areas of regulatory law. This includes the regulation of the private rented sector (my own practice area), penalties imposed by HMRC relating to tax obligations, and, in the regulations which give legal effect to the ‘stay at home’ rules during the COVID-19 crisis, the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020.
However, reasonable excuse means very different things in these different contexts.
What counts as a reasonable excuse?
Having a ‘reasonable excuse’ is a defence to various criminal offences which are otherwise ‘strict liability’ offences. For example, where a landlord breaches one of the requirements under the Management of Houses in Multiple Occupation (England) Regulations 2006, it does not matter if the landlord did not know they were committing an offence or did not intend to breach a regulation. If the property is an HMO, and there has been a breach, then the manager of the HMO is committing an offence, unless that manager has a reasonable excuse.
It can be difficult to work out whether or not a landlord has a reasonable excuse. There is usually some sort of excuse when things go wrong, but most excuses fall short of being a reasonable excuse. The Housing Act 2004 and the management regulations give absolutely no guidance about what sorts of matters will amount to a reasonable excuse, meaning that lawyers are guided by a mixture of previous decisions by judges and magistrates, common sense and guesswork.
By contrast, the coronavirus restrictions provide a non-exhaustive list of matters which definitely do constitute a reasonable excuse to leave your house during the lockdown. This means that it is possible to advise with certainty about some activities which are permitted, such as for someone “to take exercise either alone or with other members of their household”. Even where they are permitted activities which leave grey areas, there is a clear framework to determine whether or not the activity is lawful. For example, the law allows someone “to move house where reasonably necessary”.
However, there is still a lot of ambiguity in the law, and the College of Police has published guidance for officers on what constitutes a reasonable excuse. This guidance is helpful since it goes into much greater detail than the regulations and people can be reasonably confident that the police will not take action against them if they stick to it – but the examples of what does not constitute a reasonable excuse (for example: “A short walk to a park bench, when the person remains seated for a much longer period”) are not the law – this is only the College of Police’s interpretation, and the courts will not have to follow it.
The examples of permitted reasons to leave the house also demonstrate that ‘reasonable excuse’ is being used in a slightly different way. In the context of a breach of the HMO management regulations, breaches are always a bad thing – the defence of reasonable excuse simply acts to prevent every breach from being a criminal offence. But in contrast there is no moral blame attached to going shopping for essentials during the COVID-19 lockdown. You will be relying on a reasonable excuse, but in doing so you are not really ‘making excuses’ – you are doing something which is completely normal.
It is sometimes suggested that only an unexpected or unusual event can amount to a reasonable excuse, but that argument has been rejected by the Upper Tribunal Tax and Chancery Chamber, and in the context of the Health Protection regulations, it would be absurd. Reasonable excuse means something different in almost every context, but it will be an excuse that is objectively reasonable.
When is ignorance a reasonable excuse?
In IR Management Services Limited v Salford City Council  UKUT 81 (LC) the manager of a property had argued that they did not know that the property was an HMO, so they had a reasonable excuse for not complying with requirements which would only apply to HMOs. At the original hearing, the First-tier Tribunal did not accept this as a defence, finding that the manager “either knew, or ought to have known, that the premises were being used as an HMO”. As an experienced letting agent, he ought to have known this even if he genuinely was not aware of the true legal position, so there was no reasonable excuse.
Ignorance of a ‘state of affairs’ can give rise to reasonable excuse, but as demonstrated above, the courts approach this sceptically. It is even more difficult to rely on ignorance of the law as a defence of reasonable excuse.
In Christine Perrin v The Commissioners for Her Majesty’s Revenue and Customs (2018) UKUT 156 (TCC) the Upper Tribunal considered whether ignorance of the law could be an excuse:
It is a much-cited aphorism that “ignorance of the law is no excuse”, and on occasion this has been given as a reason why the defence of reasonable excuse cannot be available in such circumstances. We see no basis for this argument. Some requirements of the law are well-known, simple and straightforward but others are much less so. It will be a matter of judgment for the FTT in each case whether it was objectively reasonable for the particular taxpayer, in the circumstances of the case, to have been ignorant of the requirement in question, and for how long.
The Property Chamber of the First-tier Tribunal has taken a hard line on landlords who try to rely on ignorance of the law as a defence, including those who are based abroad and have instructed reputable letting agents. In several cases the Tribunal has indicated that landlords cannot rely on their agents to be told, for example, whether they are required to hold a licence for a property.
*Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*